As part of an occasional series on international justice and the rule of law in other jurisdictions, Rhys Davies & Ben Keith ask whether certain countries are using English law & lawyers as a smokescreen to distract from their repressive action.
Rhys Davies and Ben Keith in International Law Journal on 12 July 2018
Dubai and, increasingly, Astana are hubs for international business and commercial litigation.
Are they using the respectable reputation of English lawyers to disguise their shocking human rights records?
English lawyers have long been in demand around the world. However, the increasing presence of English lawyers in certain jurisdictions sits ill at ease with the despotic activities of governments in those countries. Increasingly the business of the law is being exported to countries who, on one hand, would have the world see that they are open for business, but on the other hand, deny basic freedoms to their own citizens. Kazakhstan and Dubai might not, at first blush, appear to have much in common. While the distractions of Astana, the capital of Kazakhstan are no doubt charming, the beach is hundreds of miles away. The bright lights of Dubai, with its outposts of London restaurants and indoor snow, may present a more immediately attractive place to do business. However, both Kazakhstan and the UAE are rich in natural resources and in recent years have made vigorous attempts to globalise. DIFC and AIFC The Dubai International Financial Centre (DIFC) has been a runaway success since it was established in 2004. It has its own legal and judicial system, loosely based on the English common law model. The DIFC proudly boasts it is ‘recognised as the leading financial centre in the Middle East, Africa and South Asia’. It is a city within a city, hosting international businesses, including the sort of professional services and lawyers who would not be out of place on Fleet Street or Wall Street. The DIFC’s courts represent a honeypot for litigation and have attracted leading lights of the English legal world for years. Perhaps it is this triumph that Kazakhstan seeks to emulate. The Astana International Financial Centre (AIFC) is modelled on the DIFC and is no doubt likely to attract plenty of attention, and more importantly, business. Indeed, recent press reports indicate that Lord Woolf, the former Lord Chief Justice, is the new Chief Justice of the commercial court at the AIFC, and a number of other British lawyers are likely to be joining him on the bench. The export of English law, and lawyers, is of course nothing new. One of the great achievements of globalisation is the ability of individuals and institutions to work with each other across borders. Global financial and legal centres regard each other as counterparties, not just as competitors, empowering trade and increasing prosperity globally. Often, and especially in the financial markets, English law is adopted as a standard, reflecting the UK's long heritage as a mercantile hub. The legal profession as much as any other is a community of professionals transcending borders. The success of the UAE has been an inspiration to Kazakhstan. Unfortunately, the parallels between the two countries do not end with a shared outlook on international business. Both countries are home to regimes who systematically ignore basic human rights and whose stock in trade is torture and repression. Basic rights ignored In the UAE, the fundamental assumptions that allegations of criminal wrongdoing will be investigated in accordance with the rule of law do not apply. The DIFC does not have jurisdiction over criminal matters. That is left to local courts which often have a very different outlook to their glamorous neighbour. The case of David Haigh is a case in point. The former Leeds United managing director went to the UAE for a business meeting in 2014 and was detained and accused of fraud by business rivals. He was imprisoned and tortured for almost two years, forced to sign a confession, before he was finally released. Accounts of torture methods used in the UAE would not look out of place in an episode of Game of Thrones—reports detail the use of beatings, stress positions, and sexual abuse, as well as electrocution. In Kazakhstan, the government uses any means necessary to attack political opponents and dissidents. Human Rights Watch reports that the government targets critics, including journalists, with politically motivated charges. Freedom of assembly is restricted, with police regularly breaking up unauthorised protests and arbitrarily detaining participants. In the long running BTA Bank litigation, the Kazakh government has shown Kazakhstan’s true commitment to justice, pursuing the dissident politician and businessman Mukhtar Ablyazov, and his associates, around the globe, using methods straight out of the FSB (Russia’s Federal Security Service) training manual. In a worldwide campaign, Kazakhstan has been seeking to discredit and humiliate him and his associates by accusing them of a $4bn fraud. The UN's special rapporteur on torture, Nils Melzer, commented that there was ‘serious reason to believe that Mr Ablyazov risks being subjected to torture’ if sent to Kazakhstan. Throughout Europe, a myriad of Ablyazov’s associates have been given political asylum as their liberty has been threatened. Ablyazov himself was under threat of assassination and received warning from the UK government of the risks to his safety. The AIFC—and its court system, mirroring that in Dubai—will likely be fully up and running this year. Just like the DIFC, the AIFC court system makes great play of its common law system ‘that operates to the highest international standards’. The AIFC Court’s website trumpets its independence from the Kazakhstan judicial system. However, rather chillingly, in light of Kazakhstan’s attitude towards the rule of law, the same website notes the court’s ‘decisions are supported by a robust enforcement system within the Republic of Kazakhstan’. How robust that enforcement system is remains to be seen. In the UAE, as well as the disregard of basic international standards of justice, there has also been an alarming trend towards the criminalisation of debt, with the enforcement of comparatively trivial matters via the Interpol Red Notice system. When business transactions go wrong, the legal norms and niceties are treated with contempt. While there is a good commercial basis for the courts in Dubai and Astana, and a need for English lawyers, many are increasingly questioning whether English lawyers are being used to lend legitimacy to legal systems which ignore the fundamental human rights—both of their own citizens, and the rights of those who are simply trying to do business. This article was first published in International Law Journal on 12 July 2018, you can view the original article here.